' MANZOOR AHMAD MALIK, J.--This judgment shall decide Criminal Appeal No.353-J of 2009 titled as "Rashid alias Rashi v. The State" and Murder Reference No.160 of 2009 titled as "State v. Rashid alias Rashi" as both these matters have arisen out of private complaint titled as "Faryad Ali v. Rashid alias Rashi etc." filed by Faryad Ali for offences under sections 302, 148 and 149, P.P.C. Regarding an occurrence alleged to have taken place within the jurisdiction of Police Station Noor Kot, District, Narowal.
2. Rashid alias Rashi (appellant) has filed Criminal Appeal No.353-J of 2009 against the judgment dated 26-3-2009, whereby, after having been tried by the learned Additional Sessions. Judge, Narowal in the above 'mentioned case, he was convicted, under section 302(b), P.P.C. And sentenced as under:- "23...By this way Rashid alias Rashi accused is found guilty regarding murder of Ishtiaq, Shehbaz, and Shumaila. So I hold him guilty for the offence under section 302(b), P. P.Cas ingredients of section 302(a) P.P.C. Are not established. It is cold blooded murder of three innocent persons without any enmity. In this situation accused Rashid alias Rashi is convicted under section 302(b), P.P.C. As Tazeer and sentenced to Death on three counts for committing qatl-eamd of Ishtiaq, Shehbaz and Shumaila deceased. He be hanged by neck till he is dead. This sentence is subject to confirmation by the honourable Lahore High Court, Lahore. He has also been directed to pay Rs.1,00,000 (one lac) as compensation for each deceased to the legal heirs of each deceased, in default of which to undergo six months' S.I for each default..."
' The appellant was, however, acquitted of the charge under sections 148 and 149, P.P.C. As the same were not established. Three co-accused of the appellant namely Asif Ali, Muhammad Sadiq and Juman were acquitted of the charges while extending them benefit of doubt.
3. Concisely, the prosecution story mentioned in the written application, (Exh.PA) on the basis of which formal F.I.R. (Exh.PA/1) was registered, are that the complainant was resident of Singhpura Lahore. On 25-8-2006 at evening time the complainant along with his brothers Muhammad Ishtiaq, Muhammad Shehbaz and sister-in-law (bhabi) Mst. Shumaila wife of Ishtiaq all Faqeer by caste, residents of Baghbanpura Lahore as well as Rashid son of Mubarik, caste. Faqeer resident of village Eesa left from. Lahore in a bus to participate in the engagement ceremony of the daughter of his sister in village Jatla. At about 2-00 a.m. (night) they alighted from the bus at Bagala Mor, from where they went towards village Jatla on foot. At about 3-00 a.m. (right) when they reached near village Jatla in the area of village Majra, suddenly four persons namely Muhammad Asif son of Mubarik, Muhammad Sadiq and Juman sons of Lal Din all Faqeer by caste residents of Chaichian and an unknown person armed with firearms emerged from millet crop. Rashid (appellant) raised a lalakara that Ishtiaq and Shumaila have come and they should be murdered whereupon Rashid and his companions started firing. Rashid (appellant) made two straight fires at Ishtiaq who fell down after sustaining injuries. Then Rashid (appellant) fired at Shumaila who fell down in injured condition. The companions of Rashid (appellant) made firing by which Shehbaz fell down after receiving injuries. The complainant raised hue and cry. On hearing noise and firing Muhammad Riaz son of Roshan Din, Shameem wife of Muhammad Riaz, all Faqeer by caste, residents of Jatla attracted to the spot and they witnessed the occurrence with their own eyes. Shehbaz, Ishtiaq and Shumaila succumbed to the injuries at the spot. Motive for the ..Occurrence is that about two years prior to the occurrence Mst. Shumaila who was real sister of Rashid (appellant) contracted marriage with Ishtiaq, brother of the complainant. Rashid (appellant) was annoyed on this marriage while the marriage was solemnized with the consent of Shumaila. Rashid (appellant) also forbade solemnizing this marriage. Rashid (appellant) bore grudge for the same and committed this murder.
4. Muhammad Iqbal, S.I. {CW.7) was posted at Police Station Noor Kot. On 26-8-2006 after registration of F.I.R., the case was entrusted to him for investigation. He left for the place of occurrence, inspected the same and prepared injury statements of Ishtiaq, Shehbaz and Shumaila (Exh.CW7/A Exh.CW7/B and Exh.CW7/C), respectively. He also prepared inquest reports of Ishtiaq, Shehbaz and Shumaila (Exh.CW7/D, Exh.CW7/E and Exh.CW7/F), respectively. He handed over the dead bodies of Ishtiaq Shehbaz and Shumaila for postmortem examination to Muhammad. Nawaz 682/C and Muhammad Ashfaq 570/C. Thereafter, he took into possession blood stained earth from the places of murder of Shumaila, Ishtiaq, and Shehbaz deceased and made into sealed parcel vide recovery memos (Exh.CW3/A, Exh.CW3/B, and Exh. CW3/C), respectively. He also inspected the place of occurrence and prepared rough sketch of place of occurrence (Exh.CW7/G). After postmortem examination, Muhammad Nawaz 682/C , produced the last worn clothes of deceased Shehbaz Ishtiaq and Shumaila which were taken into possession vide recovery memo (Exh.CW3/D, Exh.CW3/E and Exh.CW3/F), respectively. Clothes of Shehbaz are shalwar (P . 1), qameez (P.2) bunyan (P.3). Clothes of Ishtiaq are shalwar (P.4), qameez (P.5), bunyan (P.6) whereas clothes of Shumaila are chaddar (P.8), shalwar (P.9), qameez (P.10) and brazier (P.11). All the above mentioned articles were handed over to the Moharrar. On the same day Faryad Ali also produced application (Exh.CW7/H) regarding nomination of Younas accused instead of unknown accused and implicated one Muhammad Yousaf as accused of abetment. On this he recorded his supplementary statement. He tried to arrest the accused persons but they could not be traced. On 3-9-2006 Tahir Aslam Draftsman produced the scaled site plan (Exh.CW4/A, Exh.CW4/A/1). On 18- 10-2006, he obtained warrants of arrest against the accused persons and handed over the same to Zulfiqar. Ali 192/C for execution. On 28-10-2006 he obtained proclamations against the accused persons after submission of report of warrants. After completion of proceedings of warrant and proclamations he also got prepared challan under section 512, Cr.P.C. Younas and Yousaf accused were found innocent during his investigation and the challan was submitted on 27-12-2006.
Zulfiqar Ali S.-I. Was posted at Police Station Noorkot as Incharge investigation. He conducted investigation in this case but being involved in a murder case he was absconding and his handwriting and signatures were identified by Mushtaq Ahmad A.S.-I. (CW.8) who had been posted as MHC at Police Station Noorkot at the relevant time. As per record Rashid (appellant) was arrested in this case on 16-6-2007 and he got recovered pistol (CW6/1) and two live bullets (CW6/2/1-2) which were taken into possession vide memo (Exh.CW6/A). After completion of investigation report under section 173, Code of Criminal Procedure was submitted in the court of competent jurisdiction. On 4-12-2007 the complainant filed a private complaint (Exh.PB) on the same lines with the addition of Mst. Safia Bibi as a witness of the ocular account mainly on the ground that in collusion with the assailants, the local Police did not conduct the investigation fairly,
5. After cursory evidence in the private complaint, the appellant and his co-accused were summoned by the learned Additional Sessions Judge, Narowal to face the trial. Copies of the documents, as required under section 265-C,. Code of Criminal Procedure, were provided to them and formal charge under sections 302, 148, and 149 P.P.C. Was framed against them on 15-4-2008 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as six witnesses and eight CWs were called by the learned trial court. Ocular account was furnished by Faryad Ali complainant (P.W.1) and Mst. Safia Bibi (P.W.2). Medical evidence was furnished by lady Dr. Shameem Akhtar (P.W.4) and Dr. Javed Iqbal (P.W.5). Nisar Ahmad (CW.6) witnessed the recovery of pistol .30 bore (Exh.CW.6/1) at the instance of the appellant, which was taken into possession vide recovery memo (Exh.CW.6/A). Muhammad Iqbal S.-I. (CW.7) and Zulfiqar Ali S.-I. Investigated this case. Learned counsel for the complainant gave up Shaukat Ali (P.W.) being won over by the accused vide statement dated 7-10-2008. Learned ADPP gave up P.Ws. Muhammad Riaz and Shamim Bibi having been won over by the accused and Muhammad Ishtiaq, 570/C being unnecessary on the written application of Faryad Ali complainant vide statement dated 12-1-2009. He also gave up Zulfiqar Ali 192/C being unnecessary vide statement dated 14-1-2009. He tendered in evidence report of Chemical Examiner as (Exh.PH), and report of Forensic Science Laboratory as (Exh.PJ) and closed the prosecution evidence vide statement dated 20-2-2009. Statements of appellant and his co-accused were recorded under section 342, Code of Criminal Procedure on 23-2-2009 wherein they refuted all the allegations of prosecution. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Rashid alias Rashi (appellant) replied as under:-- "Neither I nor my co-accused participated in the alleged occurrence. The alleged P. Ws. Faryad, Safia Bibi and Shaukat were neither present at the spot nor they have witnessed the occurrence.
Shahmim and Riaz had witnessed the occurrence and unknown persons had committed the occurrence in the darkness of the night. The alleged complainant of this case namely Faryad Ali and P.W. Safia Bibi has implicated me and my co-accused falsely due to their close relationship with the deceased and biased against me and my co-accused."
' The appellant did not appear as his own witness in disproof of the allegations levelled against him as provided under section 340(2), Code of Criminal Procedure. Though he opted to produce evidence in his, defence but on 6-3-2009 closed the defence evidence without producing any witness or document.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that both the witnesses of ocular account i.e. Faryad Ali complainant (P.W.1) and Mst. Safia Bibi (P.W.2) are chance witnesses and the reason assigned by them for going to the place of occurrence at odd hours of the night is quite improbable; that name of Mst. Safia Bibi (P.W.2) is not mentioned in the F.I.R. Which was registered on the basis of a written application and she was introduced through the private complaint filed after one year and three months of the alleged occurrence; that the complainant admitted during the course of cross examination that he had not got recorded the name of Safia Bibi in the F.1.R.; that testimony of Mst.
Safia Bibi was disbelieved by the learned trial court for valid reasons recorded in para 20 of the impugned judgment; that as per F.I.R. The occurrence took place at 3-00 a.m. On 26-8-2006 but the crime was reported to the police at 12.00 (noon) on the same day i.e. With a delay of nine hours despite the assertion of the complainant that he was accompanying the three deceased persons namely Ishtiaq, Shahbaz and Mst. Shumaila at the time of occurrence and after hearing the noise of firing Muhammad Riaz and Shamim also attracted to the scene of crime; that no explanation whatsoeve has been furnished by the complainant the delay in reporting the matter to Police and this sole circumstance or serious doubts about the presence complainant at the time of occurrer the occurrence took place at a place and no source of light mentioned in the F.I.R., private complaint, site plan or by the witnesses of ocular account; that the occurrence took place on 26-8- 2006 and according to the corresponding Islamic calendar it was 1st of Shaban and there was no moonlight at 3-00 a.m, therefore, identification of the assailants in the circumstances is highly doubtful in nature; that a vague motive was set up in the F.I.R. Which is to the effect that Mst.
Shumaila (deceased) who was sister of the appellant was married to Ishtiaq (deceased) whereas the appellant was not happy over this marriage but the said motive falls to the ground from the contents of the F.I.R. As it is the case of the complainant that Rashid (appellant) was also accompanying them in order to attend the engagement ceremony at Jatla; that even otherwise marriage between Mst. Shumaila and Ishtiaq had taken place as per complainant 1-1/2 years prior to the occurrence and as per Mst. Safia Bibi (P.W.2) 2-1/2 years prior to the occurrence and both these witnesses admitted during the cross examination that no untoward incident took place during this whole span of time; that abscondance of the appellant was not proved by the prosecution in accordance with law as the witness who allegedly executed the non-bailable warrants and proclamation against the appellant was not produced before the learned trial court; that the same evidence of abscondance was produced against Asif Ali co-accused of the appellant but not believed by the learned trial court; that even otherwise the evidence of abscondance was not put to the appellant while recording his statement under section 342, Code of Criminal Procedure, therefore, the same could not have been relied to award conviction to the appellant; that recovery of istol .30 bore (Exh.CW.6/I) at the instance of the appellant which was taken into possession vide recovery memo (Exh.CW.6/A) violates the provisions of section 103, Code of Criminal Procedure as no independent witness was associated during the proceedings of alleged recovery, which was effected from an open place at thoroughfare; that no crime empty was taken into possession from the place of occurrence and report of Forensic Science Laboratory (Exh.J) is simply to the effect that the pistol was in working order; that in this case along with the appellant four others were also implicated three namely Asif Ali, Muhammad Sadiq and Juman were nominated in the F.I.R. And one namely Muhammad Younas was introduced through application (Exh.CW.7/H); that role of general firing was attributed to all the co-accused of the appellant; that three co-accused of the appellant namely Asif Ali, "Muhammad Sadiq and Juman were entangled and tried along with the appellant but acquitted of the charge by the learned trial court; that acquittal of co-accused of the appellant was not assailed any further either by the complainant or the State and as such the prosecution evidence which has been disbelieved by the learned trial court to the extent of acquitted co-accused of the appellant cannot be believed against the appellant without there being any independent and strong corroboration, which is very much lacking in this case; that two persons namely Muhammad Riaz and Shameem were cited as witnesses of the ocular account in the F.I.R. As well as in the private complaint but they were not produced before the learned trial court and as such adverse inference in view of the provisions of Article 129(g) of Qanun-eShahadatOrder, 1984, be drawn against the prosecution; that in the circumstances, prosecution case is of doubtful nature and the appellant is entitled to the benefit of doubt as a matter of right and not as grace.
8. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant opposes this appeal on the grounds that two brothers and a sister-in-law (bhabi) of the complainant were done to death because of which the complainant was in a state of shock and could not report the crime to the Police promptly; that even otherwise delay per se is no ground to discard the ocular account; that the complainant party and assailants were known to each other and as such there is no question of misidentification of the appellant; that the ocular account is fully supported by the medical evidence as according to the post mortem examination reports all the three deceased persons died of firearm injuries; that case of the appellant is quite distinguishable from his acquitted co-accused as nothing was recovered from them whereas a pistol 30 bore was recovered at the instance of the appellant; that motive was alleged exclusively against the appellant which has not been seriously disputed as it stands admitted on all hands that Mst. Shumaila Bibi (deceased) was married to Ishtiaq (deceased); that the prosecution case is further corroborated by the abscondance of the appellant; that the appellant has been attributed firearm injuries on the person of two deceased persons namely Ishtiaq and Shumaila; that no adverse inference can be drawn by non-production of Muhammad Riaz and Shameem as both of them were given up as having been won over by the accused side and not as being unnecessary; that thereafter an application was filed on behalf of the appellant for calling Muhammad Riaz and Shameem as defence witnesses, which was allowed by the learned trial court but both of them were not produced as defence witnesses and as such the adverse inference, if any, should be drawn against the appellant instead of prosecution; that three persons lost their lives at the hands of the appellant and his co-accused and as such the appellant does, not deserve any leniency even in the quantum of sentence; that the prosecution has proved guilt of the appellant beyond any shadow of doubt and there is no merit in this appeal.
9. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor General assisted by learned counsel for the complainant at a considerable length and have also gone through the record.
10. This incident wherein Muhammad Ishtiaq, Muhammad Shahbaz brothers of the complainant and Mst. Shumaila sister-in-law (bhabi) of the complainant were done to death as per F.I.R.
(Exh.PA/1) took place at 3-00 am on 26-8-2006 in the territorial limits of village Majra situated at a distance of three kilometers of Police Station Noor Kot, District Narowal. Matter was reported to the Police through written application (Exh.PA) moved by Faryad Ali complainant (P.W.1) and formal F.I.R. On the basis thereof was registered on the same day at 12.00 (noon) through Rapt No.13. In the circumstances there is a delay of nine hours in reporting the matter to the Police whereas distance between the place of occurrence and the Police Station as per F,I.R. Was three kilometers and as per statement of the complainant 4/5 kilometers. The complainant stated durir the cross examination that distance betwf the Police Station and place of occum could be covered in thifty minutes. It now well settled that F.I.R. Which has lodged with inordinate and impugned delay loses sanctity and possibilities of concoction and deliberation cannot be ruled out. The episode does not end here. Other circumstances suggest that the crime was not reported to the Police even at the time mentioned in the F.I.R. Because the complainant stated in the cross examination that the dead bodies were brought to Civil Hospital for mortuary at 12-00 (noon). Autopsy on the dead bodies of, Shumaila Muhammad Shahbaz and Ishtiaq was conducted at 6-00 p.m., 3-00 p.m. And 4-30 p.m.
Respectively and according to Lady Dr. Shameem Akhtar (P.W.4) she conducted the post mortem as soon as the dead body was brought before her without wasting any time.
11. Ocular account in this case was furnished by Faryad Ali complainant (P.W.1) and Mst. Safia Bibi (P.W.2). In this case F.I.R. (Exh.PA/1) was registered on the written application (Exh.PA) filed by the complainant. It is not the case of the complainant in the private complaint (Exh.PB) that his true version was not recorded in the F.I.R. Name of Mst. Safia Bibi (P.W.2) does not find mention in the F.I.R., however, in the private complaint which was filed on 4-12-2007 i.e. One year and three months of the occurrence Mst. Safia Bibi (P.W.2) was cited as a witness-of ocular account. The complainant was specifically cross examined on this aspect of the case and he admitted that in the F.I.R. He did not mention the name of Mst. Safia Bibi as witness of the occurrence. Testimony of Mst. Safia Bibi has rightly been discarded by the learned trial court for valid reasons recorded in para 20 of the impugned judgment. Now we are left with the statement of Faryad Ali complainant P.W.1). There is no cavil to the proposition that in criminal- cases it is the quality of evidence and not the quantity which settles guilt or innocence of an A accused person but we have to see whether the statement of complainant inspires confidence. Conduct of the complainant in not reporting the crime promptly creates serious doubts about his presence at the scene of crime. The complainant is a chance witness and while appearing before the learned trial court stated his address as of Singh Pura Lahore. The reason assigned by him for accompanying the three deceased persons is to the effect that he was going to mauza Jatla in order to attend engagement ceremony of his sister's daughter. The time of alighting from bus of the complainant along with the three deceased persons as disclosed by him was 2-00 a.m. (night) and the complainant admitted during the cross examination that no vehicles were available for Jatla at those hours of night, therefore, we are not persuaded to go with the explanation offered by the complainant for being present at the place of occurrence.
12. No source of light has been mentioned in the. F.I.R., site plan, private complaint or by the witnesses of the ocular account while appearing before the learned trial court. The occurrence took place on 26-8-2006 and according to the corresponding Islamic calendar it was 1st of Shaban, therefore, there was no moonlight at 3-00 a.m. The complainant stated in the cross examination that there are fields of different kind around the place of occurrence.
13. Motive for the occurrence, as per F.I.R. And private complaint, was that about two years prior to the occurrence Mst. Shumaila who was real sister of Rashid (appellant) contracted marriage with In the circumstances identification of the appellant is highly doubtful in nature. Lshtiaq, brother of the complainant. Rashid (appellant) was annoyed on this marriage while the marriage was solemnized with the consent of Shumaila and appellant also forbade solemnizing this marriage.
Rashid (appellant) bore grudge for the same and committed this murder. While appearing before the learned trial court the complainant stated that prior to the occurrence the appellant had entended threats that he would kill Muhammad Ishtiaq and Mst. Shumaila. It is nowhere case of the prosecution that marriage between Muhammad Ishtiaq and Mst. Shumaila was a runaway marriage. It was simply alleged by the prosecution that the appellant was annoyed over this marriage but the reason as to why he was not happy over the marriage of his sister with Muhammad Ishtiaq has not been disclosed. Even otherwise the motive if any was against Mst.
Shumaila and Ishtiaq and the appellant had no motive, at all, to kill Muhammad Shahbaz.
14. There is another facet of the case. This case was registered against five persons wherein besides the appellant three namely Asif Ali, Muhammad Sadiq and Juman were nominated whereas one was unknown. Through application (Exh.CW.7/H) the said unknown person was nominated as Muhammad Younas whereas one Muhammad Yousaf was implicated as accused of abetment. Muhammad Younas and Muhammad Yousaf were tried separately and acquitted. As per F.I.R. Firearm injuries on the person of Muhammad Shahbaz (deceased) were jointly attributed to the four co-accused of the appellant. Three co-accused of the appellant namely Asif Ali, Muhammad Sadiq and Juman were charged and tried along with the appellant but acquitted of the charges levelled against them through the impugned judgment while extending them benefit of doubt. Their acquittal was not assailed any further by the complainant or the State as confirmed by the learned Deputy Prosecutor General and the learned counsel for the complainant. Though in the impugned judgment it has been mentioned that an agreement at the time of arguments to prove their innocence 'by some of the legal heirs of the deceased was filed but despite repeated queries learned counsel for the complainant as well as learned Deputy Prosecutor General could not refer to any such document during the hearing of this appeal. Therefore, the question for determination before us is whether the prosecution evidence which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Iftikhar Hussain and another v. State" (2004 SCM R 1185), wherein the Hon'ble Supreme Court at page 1196 held as under:-- "17. ...It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. Sifting of grain out of chaff i.e. If an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758), relevant para there from is reproduced herein below thus: ' The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e. Sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Tawaib Khan and another v. The State (PLD 1970 SC 13), Bakka v. The State (1977 SCM R 150), Khairu and another v. The State (1981 SCM R 1136), Zaiaullah v. State (1993 SCM R 155), Ghulam Sikandar v.
Mamaraz Khan (PLD 1985 SC 11), Shahid Raza and another v. The State (1992 SCM R 1647), Irshad Ahmad and others v. The State and others (PLD 1996 SC 138) and Ahmad Khan v. The State (1990 SCM R 803)."
' Similar view was reiterated in the subsequent judgment of the Hon'ble Supreme Court of Pakistan reported as "Akhtar Ali and others v. The State" (2008 SCM R 6).
' It is evident from the perusal of the above mentioned judgment of the Hon'ble Supreme Court of Pakistan that testimony of a witness* will be acceptable against.One set of accused though the same has been rejected qua another set of accused facing the same trial, provided it gets some independent corroboration on material particulars of the case and in the absence of any independent corroboration qua the role attributed to a convict he would also be entitled to acquittal. Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan in the aforementioned judgments we will discuss the case of the appellant.
15. Coming to the recovery of 30 bored pistol (Exh.CW.6/1) allegedly effected at the instance of appellant which was taken into possession vide recovery memo (Exh.CW.6/A), Nisar Ahmad 783/C (CW.6) who witnessed the recovery of pistol admitted during the cross examination that the recovery was effected from an open place which was a thoroughfare. Since the place of recovery of pistol was not in exclusive possession of the appellant, therefore, no reliance can be placed on the said recovery in order to connect the appellant with the commission of crime. Moreover no crime empty was taken into possession from the spot and report of Forensic Science Laboratory (Exh.PJ) is simply to the effect that the pistol was in working order.
16. The evidence of alleged abscondance produced by the prosecution against the appellant is also insignificant firstly Muhammad Iqbal S.I (CW.7) stated before the learned trial court that he entrusted the non-bailable warrants of arrest and proclamation against the appellant to Zulfiqar Ali 192/C but said Zulfiqar All was not produced before the learned trial court and second), besides the appellant the evidence of abscondance was also produced against his co-accused namely Asif Ali who has been acquitted of the charge by the learned trial court. Moreover the evidence of abscondance was not put to the appellant while recording his statement under section 342, Code of Criminal Procedure. It is well established principle of law that a piece of evidence not put to the accused while examining him under section 342, Code of Criminal Procedure cannot be relied to maintain conviction.
17. Motive, set out by the prosecution, has not been believed by us for the reasons elaborated in para. 13 above.
18. The only distinguishing feature of the appellant's case is the opinion of the Police. It was stressed hard by learned Deputy Prosecutor General and learned counsel appearing on behalf of the complainant that the appellant was found involved by the Police. We are of the view that the said argument of the learned counsel for the complainant is misconceived. It is by now well settled law that opinion of police qua innocence or guilt of an accused is inadmissible in evidence, therefore, the appellant cannot be convicted merely on the ground that he was declared guilty by the police during the course of investigation. A reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmed) and another v. The State" (2010 SCM R 660) wherein, at page 676, the Hon'ble Supreme Court of Pakistan was pleaded to observe as under:- "37. ...It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged td death only because the Investigating Officer had opined about his guilt..."
19. We have examined the prosecution case and are of the considered view that the prosecution has failed to connect the appellant with the commission of crime. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the - Hon'ble Apex Court has been pleased to observe as under:-- "...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
' In view of the above, this appeal is allowed. Conviction and sentence awarded to the appellant for the murder of Shumaila, Muhammad Ishtiaq and Muhammad Shahbaz (deceased) vide judgment dated 26-3-2009 passed by the learned trial court is set aside. While extending him benefit of doubt, the appellant is acquitted of the charges framed against him. The appellant is jail. He be released forthwith if not required to be detained in any other case.
20. Murder Reference No.160 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Rashid alias Rashi (convict) on three counts is NOT CONFIRMED.